Garaci v. Hill O'Meara Construction Company

• Decision Date: 14 May 1907
• Citation: 102 S.W. 594,124 Mo.App. 709
• Parties: GARACI, Respondent, v. HILL O'MEARA CONSTRUCTION COMPANY, Appellant
• Court: Missouri Court of Appeals

102 S.W. 594

124 Mo.App. 709

GARACI, Respondent, v. HILL O'MEARA CONSTRUCTION COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

May 14, 1907

Appeal from St. Louis City Circuit Court.--Hon. J. W. McElhinney Judge.

AFFIRMED.

Judgment affirmed.

Collins & Chappell for appellant.

In cases where the danger is so great, or apparent, that a man of ordinary intelligence and prudence would have observed it then, as a matter of law, the man so observing, and not avoiding it, is guilty of contributory negligence. Bradley v. Railroad, 138 Mo. 293; Monahan v Coal Co., 58 Mo.App. 68; Malone v. Morton, 84 Mo. 436; Waldhier v. Railroad, 87 Mo. 37; Thorpe v. Railroad, 89 Mo. 650; Soeder v. Railroad, 100 Mo. 673. In its strictest sense, "necessary," in the law, is equivalent to "inevitable." 22 Am. and Eng. Ency. of Law (2 Ed.), p. 448; Lessee v. Railroad, 2 Mo.App. 115.

A. R. Taylor for respondent.

(1) The first point made by appellant in his brief is, that the plaintiff was injured by a peril ordinarily incident to the service in which he was engaged, and if this were true in fact the point would be good. But if, as plaintiff's evidence showed, there was no blocking or fastening of the derrick whilst it was being so turned, and if it was negligence to undertake to turn over the derrick under the circumstances without the blocking or fastening it to prevent its slipping, and plaintiff's evidence shows the master was doing this, then of course this is not a peril incident to the employment, and therefore, the plaintiff could not assume it. This law is too well settled in this State to admit of question. Blanton v. Dold, 109 Mo. 76; Settle v. Railroad, 127 Mo. 343; Pauck v. Dressed Beef Co., 159 Mo. 476; Curtis v. McNair, 173 Mo. 280; Cole v. Railroad, 183 Mo. 90. And this court, in an exhaustive opinion considering all the decided cases in this State and elsewhere, determines this question. Lee v. Railroad, 112 Mo.App. 400. (2) Where a servant in the progress of the service discovers that the master has been delinquent, and that some danger arises by reason of the master's negligence, yet if such danger is not so imminent and threatening that a prudent person would refuse to do the work, the servant is not, as a matter of law, negligent. This proposition is so well settled in our jurisdiction as to be at rest. Swadley v. Railroad, 18 Mo. 278; Pauck v. Dressed Beef Co., 159 Mo. 477; Wendler v. Furnishing Co., 165 Mo. 537; Minnier v. Railroad, 167 Mo. 115.

NORTONI, J. Bland, P. J., and Goode, J., concur.

OPINION

NORTONI, J.--

The suit is for personal injuries inflicted upon the plaintiff, a laborer, while in the defendant's employ, by means of a heavy derrick falling upon and breaking his leg. Plaintiff recovered in the court below and defendant appeals.

The material facts in proof are: defendant construction company was engaged in the prosecution of its business on the levee of the Mississippi river near the foot of Biddle street in the city of St. Louis. It owned a large derrick, which lay on the ground near the river, which derrick its foreman desired to overturn. The derrick was a massive structure of great weight, about thirty feet in length; its side pieces or uprights were timbers about ten by twelve inches in diameter; it was ten or twelve feet wide at the bottom and about four feet wide at the top. There was a heavy crosspiece fastened across the bottom and one across the top of the upright timbers. These two crosspieces projected about twelve inches out on each side of the derrick proper, and there were numerous intermediate crosspieces thereon as well. The latter did not project, however. The derrick lay upon the river bank near to and parallel with the river, the lower or larger end being to the north and the top end, toward the south. The ground was frozen and slick and sloped toward the river. The defendant desired to overturn the derrick on its side to the east or toward the river, which involved raising it from the west side and tipping it downgrade toward the river. All of the evidence introduced tends to prove that the usual, customary and safe way to accomplish this was to drive stakes or crowbars at either end of the derrick and on the side thereof nearest the river to prevent it from slipping as the men raised it from the opposite side, and also to remove the earth at either end and dig holes where the projecting crosspieces were so that in the operation of turning, the protruding ends of the two crosspieces mentioned would be beneath the surface of the ground, for to do so avoided their operating to raise the side timbers of the derrick from the earth, whereby the lift was rendered greater and the possibilities of the derrick slipping more probable, and consequently more dangerous.

The defendant's foreman in charge called the plaintiff and probably ten other laborers to assist and directed them to take hold along the west side of the derrick lying flat on the ground, as it was, and to overturn it downgrade toward the river. Plaintiff had never worked on or about a derrick and was unfamiliar with it, as he was with the usual and customary manner of overturning the same. He and his several witnesses say that the defendant failed to provide stakes or crowbars or other supports adjacent to the opposite side thereof, and failed to remove the earth to permit the protruding crosspieces to sink beneath the surface, as indicated, and therefore, while the several men, under the immediate direction of the foreman, were in the act of lifting and overturning the same, the protruding crosspieces slipped on the frozen incline of the levee or river bank toward the river about the time they had lifted it a little more than waist high, from which slipping the derrick became unmanageable and fell back upon this plaintiff, breaking his leg below the knee, which injury necessitated the amputation of the limb, which was done; that the slipping of the derrick was occasioned by reason of the foreman's failure to provide holes underneath the protruding crosspieces and his failure to provide stakes or other sufficient fastenings to prevent slipping of the derrick on the frozen ground.

Defendant's witnesses, as well as one or two of plaintiff's witnesses, testified that the usual, customary and safe way to overturn the derrick was to dig holes and drive stakes or crowbars against the side-rail, as mentioned. Plaintiff himself, however, knew nothing of this precaution, inasmuch as he had never been engaged in a like undertaking nor about a derrick. The only conflict in the evidence is, the defendant's foreman and assistant foreman testified that both of these precautions had been taken by them; that they had removed the earth beneath the ends of the protruding crosspieces and had driven crowbars into the ground as stakes to prevent the slipping; that the derrick in fact did not slip at all, but, on the contrary, the plaintiff's injury was occasioned by several of his fellow-employees quitting the lift or changing places at an inopportune moment, which rendered it impossible for the others to sustain their effort, in consequence of which the fall and his resulting injury occurred. The negligence declared upon in the petition is the order and direction by the defendant's foreman to plaintiff and others to overturn the derrick without first causing the same to be blocked or sufficiently fastened to prevent its slipping while being raised and overturned.

The court very properly refused to peremptorily direct a verdict for the defendant and submitted the cause to the jury on instructions, the first of which, given at the request of the plaintiff, is as follows:

"If the jury find from the evidence in this case that, on the 13th day of February, 1902, the defendant was operating the derrick and appliances mentioned in the evidence at or near the Levee and Biddle street, in the city of St. Louis,

"And if the jury find from the evidence that on said day the plaintiff was in the service of the defendant, as a laborer engaged in assisting in the work of raising the derrick, mentioned in the evidence, and that whilst so engaged said derrick fell upon and injured the plaintiff, as mentioned in the evidence,

"And if the jury find from the evidence that, as said derrick was situated, it was necessary that said derrick should be blocked or fastened to prevent it from slipping and injuring the plaintiff whilst it was being so raised,

"And if the jury find from the evidence that said derrick was not blocked or fastened whilst it was being raised, and that thereby said derrick was so caused to fall and injure the plaintiff,

"And if the jury find from the evidence that defendant's foreman in charge of said work for defendant was present directing the manner of doing said work, and directed said work to be done without being blocked or fastened to prevent its falling and injuring the plaintiff,

"And if the jury find from the evidence that defendant's foreman, so in charge of said work, did not exercise ordinary care in so directing said work to be done, without having said derrick blocked or fastened, and thereby directly contributed to cause said derrick to fall upon and injure the plaintiff, as mentioned in the evidence,

"And if the jury find from the evidence that the plaintiff was exercising ordinary care at the time of his injury, then plaintiff is entitled to recover, although the jury should believe from the evidence that other servants of the defendant were negligent in and about the raising of said derrick."

1. It is urged the employment of the word "necessary" in this instruction, directed the jury in effect that, even though the derrick would necessarily fall and injure the plaintiff, he was entitled to...